Ambiguity And Uncertainties in Law Create a Disorderly And Disruptive Society Whose Progress Towards Greater Equity is Always Impeded:Justice Gautam Patel

Bombay High Court judge Justice Gautam Patel recently talked about Constitutional issues awaiting us in 'Amrit Kaal'- Antitrust, Privatisation, Metaverse, Climate litigation."What does constitutional law have to do with commerce? What does the Constitution have to do with commerce and business? My answer is 'everything'. We have become so used to seeing the Constitution as being limited to certain parts- Part III 'Fundamental Rights'- that we are not realising the Constitution for what it is, which is the charter for us as a society and all its problems, including the way we go about living, working, earning and doing business. There are phrases in the Constitution which are important, and we have begun to fling a couple of them around without really pausing to think about them. One of those words is 'justice'. The Constitution begins with this and we have to pause once in a while to ask what this means and what it really means", he began.Continuing, Justice Patel explained, "When we began, we were perhaps reacting to a half-century of gross exploitation- the Bengal famine, there is enough documentation to show that it was atleast in some ways engineered at a tremendous cost to human life, and the result was that we wound up with what is clearly a false binary of capitalism versus socialism, or rich versus poor which is another question because there have been rich always and there have been poor always. The only question really that we need to ask ourselves is about efficiency. What is the most efficient, most economical way to do the most equity, to do the greatest good, the labels that you attach to this don't matter. A principle of governance which says that we will take it away because we think you have too much does not address the question of either justice or of efficiency"."Certainty is the other aspect. In the context of commercial enterprises and businesses, obvious examples are taxation- you must know where you stand and what the tax law is. But there is a more fundamental thing here- certainty in decision-making. There cannot be consistency, there will be changes, but certainty is needed. It has two components- predictability- when asked by a client what will happen in the given scenario, to be forced to a position where one has to say 'we don't know, let's see what the courts do', that has a devastating downstream effect because corporate and businesses do not know how to plan. Certainty is required because it is the fundamental under-pinning of the rule of law. People know what to do and how to go about doing it if the law is certain. Ambiguity and uncertainties in the law create a disorderly, disruptive, disorganised society whose progress towards greater equity is always impeded", he elaborated."My list (cause-list) today, Friday, was entirely of writ petition, claims for protection under article 226 invoking some form of some right under part III of the Constitution, arbitrariness or violation of article 19(1) of the freedoms. I quickly looked at the list on the phone and I counted. 47% of the cases total were by commercial entities and not individuals. There were some coming in for pension, some for individual benefits, but a full 47% of the others were in court invoking a constitutional right in the context of a commercial enterprise. That should tell you somewhat of where we are going with this conversation", he added.Continuing, Justice Patel canvassed, "The other aspect which everybody talks about is pendency. Nobody has defined it. Nobody knows what this beast is and it is the 800 pound gorilla in the room. The minute a case of any description is filed, it is pending. Immediately your meter, your ticker goes up by one but that case is not ready for disposal by the fastest of the fastest of the fastest judges. It can't be done because the judicial process mandates that you have to give a copy of this lawsuit to the other side, serve him and get him to court, give him time to respond to your case. Once he has filed it- fair enough, don't give any adjournments, accepted- but once he has been given enough opportunities, then decide it. How is it pending until then? These numbers lie. Unless you sort out and identify the problem, you're never going to be able to address the solution correctly. You are looking at this huge mountain and you're wondering how you will ever get over it. One of my fellow judges yesterday said that it is an odd thing what will we say about ourselves at the end of our tenure as judges once we retire, that there was an ocean of cases and after 10 or 12 or 15 years maybe, I emptied two buckets out of it. But the ocean is what it is. Glaciers melt faster than we can dispose off cases. Why? How? Many solutions, many problems. But it is crucial to the advancement of the system""On the 'bossy State' and on privatisation- how much privatisation and of what would be constitutionally valid? How many of our resources would you accept passing into private hands? Drinking...

Ambiguity And Uncertainties in Law Create a Disorderly And Disruptive Society Whose Progress Towards Greater Equity is Always Impeded:Justice Gautam Patel

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